Law Times

Law Times • January 12, 2015 Page 15 www.lawtimesnews.com supported. Officer indicated that he did not see 'mouth alco- hol issue', that time for taking of ASD test was more than 15 minutes, and that he had no rea- son to believe that accused had consumed alcoholic beverage within 15-minute time period in any event. Trial judge had found officer wholly credible. Absent finding of incredulity in officer's evidence it was not open to trial judge to make find- ing that he did in relation to s. 8 breach. There was no credible evidence that ASD reading was unreliable. It was not enough to say that "mouth alcohol" could exist, nor was there any positive legal duty on officer to make in- quiry about time of last drink. R. v. Su (Sep. 12, 2014, Ont. S.C.J., H.K. O'Connell J., File No. Newmarket 12-C7179) De- cision at 105 W.C.B. (2d) 383 was reversed. 116 W.C.B. (2d) 232. Drug Offences CULTIVATING MARIJUANA Trial judge blurred distinction between evidence, inferences and proven facts Accused appealed his convic- tion for cultivating marijuana and related offences. Police ex- ecuted search warrant at house jointly owned by accused and his wife. When police entered house, they detected strong smell of freshly grown mari- juana. During their search, police found significant mari- juana grow operation. Apart from bed, house was sparsely furnished. Police found limited food, dishes or cooking uten- sils in house. However, both men's and women's clothing was found in second f loor bedroom; and prescription pill bottles in names of six different individu- als were found on kitchen table. Accused arrived at house short- ly after search warrant was exe- cuted and was arrested immedi- ately. Following his arrest, police found key to house in accused's pocket. Accused and his wife were subsequently charged with number of offences, including: production of marijuana; pos- session of marijuana for pur- pose of trafficking; possession of proceeds of crime; theft of electricity; possession of prohib- ited weapon, namely knife, (col- lectively "grow operation charg- es"); and various firearms of- fences. At conclusion of Crown's case, accused did not call evi- dence. Rather, it was accused's position that Crown had failed to disprove potential innocent explanations for circumstan- tial evidence it presented, such as him being absentee landlord who was visiting house for first time. Appeal allowed; new trial ordered on drug charges. Trial judge erred in law in holding that, when assessing circum- stantial evidence, conclusions alternative to guilt of accused must arise from "proven facts." Trial judge's reasons demon- strated that this error infected his reasoning process. Question of whether reasonable doubt ex- ists must be assessed based on totality of evidence adduced at trial and not simply based on "proven facts." While evidence at trial may not have been in dispute, inferences capable of being drawn from that evidence were very much in dispute. Trial judge blurred distinction between evidence, available in- ferences and proven facts. Trial judge erred in finding that there was no evidence that multiple persons were involved in mari- juana grow operation. This er- roneous conclusion was driven by incorrect view that, in case involving circumstantial evi- dence, alternatives to guilt must be based on proven facts. Al- though court acknowledged that Crown's case that accused was at least participant in grow opera- tion was strong, trial judge's er- roneous approach to assessing evidence could well have tainted his assessment of this issue. R. v. Bui (Aug. 29, 2014, Ont. C.A., Robert Sharpe J.A., Janet Simmons J.A., and G. Pardu J.A., File No. CA C55994) Decision at 101 W.C.B. (2d) 120 was re- versed. 116 W.C.B. (2d) 267. POSSESSION Trial judge erred in finding accused in possession of cocaine Accused appealed his convic- tions for driving over 80 and possession of cocaine. Accused alleged that trial justice erred at law in finding accused in posses- sion of cocaine. Searching officer testified that bag of crack cocaine was clearly visible, couple inches below seat between driver's seats and console in vehicle. Search- ing officer conceded that vehicle was not registered to accused. Trial justice found accused had control of vehicle and narcotic could be seen by searching of- ficer without difficulty during his investigations and that only reasonable inference was that accused must have known of its presence and his control of mo- tor vehicle effectively gave him control of narcotic. Appeal al- lowed; acquittal for possession of cocaine entered. Accused was not registered owner of vehicle. Cocaine was apparently found between front seat and console, about four inches below seat level, in one inch by one inch clear plastic Ziploc baggie. There was no evidence as to whether baggie was visible clearly from accused's vantage point in ve- hicle. It appeared it was not vis- ible to officer until he climbed inside vehicle and was looking down between seat and console. Baggie was not tested for finger- prints. There was no evidence as to how long, or how many times, vehicle had been operated by accused beyond observation of investigating officer on night in question. R. v. Edgar (Aug. 25, 2014, Ont. S.C.J., Douglas J., File No. Os- hawa CR-13365-AP) 116 W.C.B. (2d) 237. Motor Vehicles IMPAIRED DRIVING AND OVER 80 No authority for common sense inference concerning post-driving drinking Accused appealed conviction for over 80. After argument with his girlfriend, accused pur- chased 15-pack of beer and later stopped along side of rural road to urinate. Accused's vehicle became stuck in ditch and pass- ing motorist offered to get tow truck to return to assist accused. Motorist could not contact tow truck, but called police to report incident. Upon arriving at scene, officers saw accused exit from driver's seat of vehicle and noted strong smell of alcohol on his breath. Officers noted that ac- cused was unsteady on his feet, was slurring his words, and was emotional. While waiting for tow truck, officers searched in general area of accused's vehicle looking for key to accused's ve- hicle, and did not see any empty beer cans. Trial judge held that accused was neither credible nor reliable, while officers were both credible and reliable in gen- eral. Trial judge referred to R. v. Paszczenko and relied on com- mon sense inference that people do not normally ingest large amounts of alcohol just prior to or while driving. Trial judge re- jected accused's evidence that he consumed five bottles of beer af- ter motorist left him at scene and before officers arrived. Accused argued that trial judge failed to correctly apply W.(D.), failed to apply reasonable doubt stan- dard to his evidence, and failed to properly evaluate evidence of his drinking pattern. Appeal al- lowed, new trial ordered. Trial judge was senior, experienced, and well-regarded judge who was taken to know law, and court did not accept accused's argument that he applied balance of prob- abilities standard rather than reasonable doubt standard in his analysis of accused's evidence. While trial judge correctly refer- enced W.(D.), he omitted refer- ence to step two, but later con- cluded that accused's evidence had not raised "possibility" of "bolus drinking." Trial judge ap- peared to have rejected accused's evidence of significant alcohol consumption after car went into ditch. While it was open to trial judge to reject accused's evidence because of various in- consistencies, it was not open to him to reject accused's evidence in reliance on common sense in- ference described in Paszczenko, when he had articulated issue before him as post-driving alco- hol consumption. Accused gave evidence of post-driving drink- ing, and trial judge's comment suggested that accused bore bur- den to rebut presumption. Com- mon sense inference described in Paszczenko was not presump- tion but persuasive inference, and there was no authority for common sense inference con- cerning post-driving drinking. Either trial judge misunderstood inference described in Paszc- zenko, or he misunderstood accused's evidence and theory of his case. In face of evidence which was not overwhelming, and not knowing weight trial judge gave to Paszczenko in re- jecting accused's evidence, court could not consider curative pro- viso. Trial judge's misdirection was fatal, and could not be said to be reasonably capable of sup- porting his conclusion. R. v. Hassard (Sep. 19, 2014, Ont. S.C.J., Timothy D. Ray J., File No. 11-1365) 116 W.C.B. (2d) 291. SUPREME COURT OF CANADA Air Law CARRIAGE Canada's international undertaking to guide court in determining appropriate and just remedy Respondents brought applica- tion under Official Languages Act alleging that appellant breached linguistic duties by failing to offer them service in French on international f lights. Respondents sought declara- tion, letter of apology, dam- ages and structural order. Judge found appellant breached duties by failing to offer services in French on f lights where there was significant demand for same; failing to translate an- nouncement by pilot in English; and in making announcement regarding baggage collection at Toronto airport in English only. Appellant ordered to issue apol- ogy; make reasonable effort to comply with duties; introduce monitoring system to identify and document potential viola- tions; pay damages to each re- spondent; and pay costs. Fed- eral Court of Appeal allowed appeal and respondents' appeal dismissed. Montreal Conven- tion does not permit award of damages for breach of language rights during international car- riage by air. General remedial power under act to award ap- propriate and just remedies can- not give Canadian courts autho- rization to depart from inter- national obligations. Montreal Convention provides exclusive recourse for claims arising in course of international carriage by air. Article 29 establishes that for claims within scope of con- vention, "any action for damag- es, however founded" may only be brought subject to conditions and limits of liability as set out in Convention. Exclusivity of convention's liability scheme excludes actions arising from injuries suffered by passengers for actions not otherwise fall- ing within scheme of permit- ted claims. Respondents' claims are "action for damages" within meaning of Article 29. Claim for damages to compensate for moral prejudice, pain and suf- fering and loss of enjoyment of vacation not relating to death or bodily injury not permitted. Overlap but no conf lict between general remedial powers under Act and exclusion of damages under convention. Provisions have markedly different pur- poses and touch on distinct subject matters. Power to grant appropriate and just remedy un- der act can be reconciled with specific and limited exclusion of damages in context of inter- national air travel. Parliament did not intend courts to grant damages when doing so would violate Canada's international undertakings. Canada's inter- national undertakings to guide court in determining appropri- ate and just remedy. Structural order too imprecise and risked ongoing litigation and court su- pervision in relation to compli- ance. Thibodeau c. Air Canada (Oct. 28, 2014, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Roth- stein J., Cromwell J., Karakat- sanis J., and Wagner J., File No. 35100) Decision at 220 A.C.W.S. (3d) 538 was affirmed. 245 A.C.W.S. (3d) 460. LT CASELAW ARE YOU RECEIVING CANADIAN LEGAL NEWSWIRE? Keep abreast of essential late-breaking legal news and developments with our electronic newswire. VISIT OUR WEBSITE WWW.CANADIANLAWYERMAG.COM AND LOOK UNDER "LINKS" SIGN UP FOR FREE From the publisher of and Untitled-5 1 14-05-27 1:38 PM

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